In a 2-1 decision (pdf), the United States Court of Appeals for the District of Columbia Circuit recently upheld the decision of the Fish and Wildlife Service to delist the West Virginia northern flying squirrel (Glaucomys sabrinus fuscus). The lower court held that the Service violated the Endangered Species Act (ESA) by removing the species from the list of endangered and threatened species despite the fact that several Recovery Plan Criteria had not been satisfied. In its decision, the D.C. Circuit held that “[a] plan is a statement of intention, not a contract,” and that “[i]f the plan is overtaken by events, then there is no need to change the plan; it may simply be irrelevant.”
This decision is noteworthy for both what it did and did not hold. Specifically, although the D.C. Circuit held that recovery plans are not de facto binding, it did not hold that the federal wildlife agencies are free to disregard such plans when taking delisting actions. As such, the federal wildlife agencies should explain themselves whenever a delisting action deviates from the recovery plan. This approach is consistent with the commentators who have argued that while recovery plans are not mandatory agencies must explain themselves when they deviate from such plans.
Given the uncertainties and the necessarily iterative learning process inherent in conservation biology, recovery plans are also necessarily tentative. As a result, the courts have been hesitant to require the wildlife agencies to comply with plans. At the same time, however, the plans will generally be evidence of the best available science since they are developed outside the context of any individual dispute; deviations from the plan thus should require explanation.
Dale D. Goble. Recovery, in Endangered Species Act: Law, Policy, and Perspectives (Donald C. Baur and William Robert Irvin, eds. 2010). This line of reasoning comports with both the language and history of the Endangered Species Act and the Administrative Procedure Act as interpreted by the judiciary.